by Prasun Nabiyal
Introduction
Islam conceptualises marital union to be strictly contractual in nature;[1] thus, it is also subject to a breach of contract— amounting to the separation of the spouses. Such separation is grounded on the belief that the husband and wife cannot co-exist.[2] As marriage to non-Muslims is unlawful for Muslim women and vice-versa, the marital union between a Muslim and a non-Muslim is thus rendered impossible.[3] However, if one of the Muslim spouses converts to another religion after the lawful marriage, the resulting consequences regarding the status of the marriage and the respective marital rights and duties take an interesting turn.
The Legality of Post-Marriage Conversion in Islam
Islamic marriages are primarily governed by the Quran and hadiths, further supplemented by general interpretative and jurisprudential tools.[4] Thus, under the legal system of India, various aspects of a Muslim person’s life, including marriage, are governed by their respective personal laws. These personal laws further exist in two forms: Quranic law as derived from scriptures and laws enacted by a competent legislature, or judicial precedents, etc.[5]
Law from Scriptures
Although the topic of divorce is extensively dealt with in the Quran,[6] the holy book does not deal with the issue of post-marriage conversion and its involved niceties in a direct manner. Thus, the issue of post-marriage conversion came to be interpreted and dealt with in various ways under the different schools of Muslim law— namely, Hanafi, Maliki, Shai’ifi and Hanbali. Among these, the Hanafi tradition came to form the foundation of Muslim personal law in India.[7] In Hanafi tradition, not all marriages forbidden under Quranic law are deemed to be invalid, as some are considered to be merely irregular in nature. The reasoning behind this manoeuvre lies in the belief that in cases where the possibility of regularising the marriage is at the complete discretion of one of the parties— they must be compelled to act accordingly or to separate.[8] However, the Hanafi school deems instances of post-marriage conversion to dissolve the marriage. This stems from the Hanafi belief that the apostasy-induced separation of spouses is an “immediate dissolution of the marriage”— not a divorce. Hence, despite falling in the category of potentially regularised marriages, cases of post-marriage conversion are placed outside the purview of a judge and his ruling and, thus, deemed to immediately dissolve the marriage.[9] Post-marriage conversion-induced separation is hence placed outside the Venn diagram of divorce. Thus, the applicability of Quranic provisions regarding maintenance is surrounded by a mist of ambiguity in cases of separation as induced by post-marriage conversion. Al-hidayah, i.e., “the most influential compendium of Hanafi jurisprudence”,[10] gives clarity on this issue. It states that in the case of the husband’s apostasy, the wife is entitled to the whole of mahr— partially contingent on the consummation of marriage. In the absence of such consummation, the wife is only entitled to ½ of mahr. Further, if the wife is apostate, her entitlement to mahr is completely dependent on the consummation of marriage— in the absence of such consummation, she is not entitled to ANY mahr or maintenance as the separation is caused by her.[11] The Islamic law as it exists in the form of positive laws enacted by secular institutions such as the legislature and the judiciary— shows divergence at multiple shoots.
Law from Secular Institutions
In India, secular institutions, such as the legislature, derive their rule-making powers and legitimacy over the Muslim personal law from the Muslim (Shariat) Act.[12] This power, thus, allows the secular institutions to effectively alter the prevalent Muslim personal law in India, notwithstanding its dissonance with the Hanafi school of law. This divergence is wholly substantiated in the legislation of DMMA.[13]
The object of DMMA was to clear the mist of ambiguity surrounding the dissolution of marriage and post-marriage conversion under Islamic law. However, in the quest for the aforementioned, the Act and its provisions were constructed in a way that diverged from the traditional Hanafist views. For instance, the Islamic provision directing the automatic dissolution of marriages on the conversion of either spouse was altered u/s. 4 of DMMA, thus holding the wife’s conversion to not amount to automatic dissolution of marriage. The same was upheld by the Calcutta HC in Noor Jehan Begum v. Eugene Tiscenko.[14] However, Section 4’s application is also contingent upon the converting wife’s original faith, i.e., if the converting wife was not originally a Muslim and was a convertee in the first place— the marriage was held automatically dissolved. However, the law regarding the husband’s conversion was left unaltered, hence, amounting to the automatic dissolution of the marriage. These nuanced distinctions were put in place through the DMMA, as prior to its enactment, the conversion of either spouse resulted in the automatic dissolution of marriage according to personal law.[15]
Another such development in positive law where a point of divergence from the Hanafist tradition is to be observed is regarding the issue of maintenance. Although the Hanafi school does not provide for maintenance post-iddat, the ex-husband’s liability extends only till the observation of iddat, not beyond that.[16] However, the Indian judiciary has often provided for post-divorce maintenance, surpassing the iddat period. Further, according to the Hanafist tradition, on the automatic dissolution of marriage as induced by the husband’s conversion— the wife does not need to observe iddat.[17] This, again, leads to a state of confusion regarding the applicability in instances of post-marriage conversion.
The Muslim Women Act is the governing positive law regarding issues surrounding maintenance and divorce. S.3(1) of the act holds divorced Muslim women to be entitled to mechanisms such as mahr and maintenance.[18] However, the point of divergence lies in the provision dealing with the post-iddat period. It provides that after the period of iddat has expired, although the husband’s duty of maintenance is complete— the woman is entitled to maintenance till she gets remarried. Section 4(1), however, transfers the duty of maintenance from the husband to the woman’s side of the family. Thus, limiting the husband’s responsibility to a short period of time, i.e., iddat.[19] The statute’s provisions regarding the maintenance rights of Muslim women have been further developed through judicial precedents. For example, in the case of Ali v. Sufaira,[20] the courts interpreted section 3(1) in such a manner as to extend a divorced Muslim woman’s maintenance rights to exceed the iddat period— extending the provision to “a reasonable and fair provision for the future”. This was further upheld in future cases such as Daniel Latif v. Union of India.[21] Thus, although the sum itself must be paid during the iddat period— Ali v. Sufaira effectively extended the maintenance rights to the post-iddat period, i.e., for the rest of her life or at least till her remarriage. In this manner, the aforementioned case extended the security for divorced Muslim women without directly contravening the Quranic provisions.
Hence, the courts and the legislature have often taken a divergent turn from the traditional Hanafist Muslim law. The core causes of such a divergent approach of the secular institutions lie in the unjust social dimensions of the Muslim community and the ground reality of Islamic provisions in the society as a whole.
Involved Societal Paradigms
The value of laws as an instrument for shaping the very fabric of society has been palpable since the olden times. Hence, the personal laws of a religion such as Islam do not necessarily reflect the Islamic law as it traditionally exists in scriptures; rather, its positive law legislation is utilised as an effective instrument for moulding and shaping society in a desirable manner.[22] For instance, in colonial times, the Britishers framed post-marriage conversion laws in favour of conversion in order to facilitate the conversion of the natives to the fold of Christianity. However, such an instrumentalization of personal law legislation can also be utilised in order to mend the society astray from its social ills, as entrenched through its religious institutions, for example the Hindu caste system. In such circumstances, the instrumentalization becomes an act of necessity. Thus, the existing divergence between the Islamic law as espoused in Hanafi tradition and the Islamic law as espoused in the statutes and judicial precedents is an attempt at rectifying the unwanted social circumstances that are birthed in the absence of such divergence. This phenomenon can especially be observed in the positive law divergence on “the effect of conversion on the status of Islamic marriage.” For instance, the statement of objects and reasons of DMMA clearly states the absence of recourses for married Muslim women in the Hanafi school of law. In other words, the Muslim woman cannot move the court for the dissolution of marriage even on grounds such as “husband neglects to maintain her,” or “husband deserts/maltreats/absconds her.” DMMA was, thus, enacted to rectify the dire state of Muslim married woman and provide them with recourses to dissolve their miserable marriages.[23] Thus, prior to DMMA, due to the lack of other means, Muslim women started utilising conversion as an instrument for getting out of marriages.[24] However, as DMMA provided the Muslim women with various alternate ways to achieve the same, it simultaneously stopped the aforementioned practice of using conversion as an instrument of separation through an explicit provision, i.e., section 5.[25] This step was an act of necessity as this archaic legal remnant of the British era made it difficult to accommodate inter-religious marriages into the existing legal system; further, as DMMA provided multiple alternative ways for Muslim women to seek a divorce— its function as an instrument of separation became obsolete.
The Needed Shift in Remedies
Legislation such as DMMA and Muslim Women Act, although enacted for the betterment of Muslim women, are still lacking in the remedies and recourses that they provide to Muslim women. For instance, the division of recourses across various statutes compels the aggrieved Muslim woman to file separate cases under different laws, hence rendering it difficult for the aggrieved to get justice.[26] Further, the security and sustenance of divorced Muslim women, such as their right to maintenance etc., is still a throbbing issue in need of rectification. For example, even in the contemporary framework of the Muslim Women Act, if the Muslim woman makes use of DMMA and seeks divorce— she loses her right to maintenance, mahr, etc.[27] This effectively entraps Muslim women in miserable marriages as they fear post-divorce survival. Moreover, even if the divorced Muslim woman is eligible for the payment of maintenance and mahr— the ground reality situation shows the inadequacy of the given provisions. The plight of eligible women is also a sight as the payment of mehr on divorce is often eschewed; moreover, the payment of maintenance also tends to be highly infrequent in nature. On top of all of this, mehr and maintenance, even if paid as promised, are so meagre in nature that they hardly support the divorced woman and her sustenance.[28] Thus, the Muslim personal law in India is very inefficient in its functioning as a protector of aggrieved Muslim women as, in reality or practicality, divorced women are not being aided by their ex-husbands.
A possible solution to this conundrum could be the standardisation of Nikah Nama. The standardisation must be aided with clauses regarding maintenance and mahr. As the Quran is in want of a prescribed standard form of Nikah Nama— the favourable change would be facilitated into the society without going into blatant contravention of the Islamic provisions. The crux of this proposed solution lies in providing a comprehensive and uniform template for the Nikah Nama, which would include clear provisions pertaining to the financial support and post-divorce rights of Muslim women. Standardization ensures that essential elements such as maintenance and mahr are explicitly addressed in the marriage contract, leaving no room for ambiguity or oversight. The rationale behind this proposal is to streamline legal processes and eliminate the need for Muslim women to file separate cases under various statutes. The existing situation, where aggrieved women must navigate different laws for remedies, often proves cumbersome and hinders the pursuit of justice. By consolidating these crucial aspects within the standardized Nikah Nama, the legal landscape would be simplified, providing a more efficient and accessible mechanism for redressal. Moreover, the inclusion of specific clauses regarding maintenance and mahr in the standardized Nikah Nama aims to rectify the prevalent issues faced by divorced Muslim women. As highlighted earlier, under the current framework the act of seeking divorce through certain laws may result in the forfeiture of the woman’s right to maintenance and mahr. The proposed solution seeks to address this issue by ensuring that these rights are explicitly stated and protected within the standardized Nikah Nama. In this manner, the Nikah Nama can be used for the benefit of divorced Muslim women by providing them with a number of safeguards in case of a divorce or dissolution.
Conclusion
To conclude, a thorough sociological analysis of the dissonance between the two forms of Muslim law regarding post-marriage conversion reveals the plight of married Muslim women and the inefficiency of the existing legal machinery in rectifying the same. The examination of the challenges inherent in the existing legal system for the protection of Muslim women’s rights reveals a complex landscape fraught with shortcomings. The legislations in place, such as the DMMA and Muslim Women Act, though enacted with the intention of bettering the circumstances for Muslim women, still fall short in providing effective remedies and recourse.
Against this backdrop, the proposed solution of standardizing the Nikah Nama emerges as a crucial and pragmatic approach to address the challenges embedded in the current system. The standardization of Nikah Nama is positioned as a strategic intervention that harmonizes with Islamic principles, recognizing the absence of a prescribed standard form in the Quran. By incorporating clauses that delineate the financial aspects of marriage and divorce, the proposed solution navigates the delicate balance between legal reform and religious adherence. This standardized approach not only facilitates a more straightforward legal recourse for aggrieved women but also aligns with the spirit of justice and equity espoused by Islamic teachings.
The author, Prasun Nabiyal, is a law undergraduate student at the National Law School of India University (NLSIU), Bangalore.
[1] Mahmoud Hoballah, Marriage, Divorce and Inheritance in Islamic Law, 22 | George Washington Law Review | 24, 25 (1953).
[2] Muhammad Ali, Commentary on The Holy Quran, 96 (1st ed., 1917).
[3] Quran, Sura Al-Maa’idah: 5; 5.
[4] Majid Khadduri, Nature and Sources of Islamic Law, 22 | George Washinton Law Review | 3, 4 (1953).
[5] Ibid.; Qazi Sarah Rasheed, A K Sharma, Muslim Women’s Rights in India: Codified Personal Laws Needed, 51 | Economic and Political Weekly | 22 (2016).
[6] Quran, Sura Al-Talaq IXV: 65; Quran, II: 229-30.
[7] Furqan Ahmed, Understanding Islamic Law in India: An Assessment of The Contribution of Justice V.R. Krishna Iyer: A Tribute, 57 | Journal of the Indian Law Institute | 307, 321 (2015).
[8] J.N.D. Anderson, Invalid and Void marriages in Hanafi Law, 13 | Bulletin of the School of Oriental and African Studies | 357, 363 (1950).
[9] Burhan al-Din al-Marghinani,Al-Hidayah fi Sharh Bidayat al-Mubtadi (1197) Book VI, ch-58, 544.
[10] Rohit De, The Two Husbands of Vera Tiscenko: Apostasy, Conversion, and Divorce in Late Colonial India, 28 | Law and History Review | 1011 (2010).
[11] Ibid, at 544.
[12] S.4, The Muslim Personal Law (Shariat) Application Act, 1937.
[13] S.5, Dissolution of Muslim Marriages Act, 1939.
[14] Noor Jehan Begum v. Eugene Tiscenko, AIR 1942 Cal 325.
[15] Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, 237 (11th ed., 1938).
[16] Sanchit Bhalla, Compare the Law of Divorce of Hindu, Muslim and Christian, 26 | Supremo Amicus | 432 (2021).
[17] Ibid.
[18] S.3(1), Muslim Women (Protection of Rights on Marriage) Act, 2019.
[19] Ibid, at s 4(1).
[20] Ali v. Sufaira 1988 SCC OnLine Ker 153.
[21] Daniel Latif v. Union of India (2001) 7 SCC 740.
[22] Vinitha Johnson, A Note on the operation of the Dissolution of Muslim Marriages Act, 1939, 52 | Journal of Divorce & Remarriage | 94, 103 (2011).
[23] Ibid.
[24] Ibid.
[25] S.5, Dissolution of Muslim Marriages Act, 1939.
[26] Supra 5 at 23.
[27] Munira Siganporia, Indian Muslim Women Post Divorce Problems and Social Support, 3 | Indian Journal of Social Work | 355, 356 (1993).
[28] Ibid, at 4, 5, 7.
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